Nave v. Home Mutual Insurance

37 Mo. 430 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

It was conceded that there was evidence in the case tending to show that the building, which was the subject insured, being used as a store and warehouse, and the floors being heavily loaded with merchandise, by reason of the overloading, or of some defect of construction, before the happening of the fire, and without any agency of fire, fell down and became a mass of rubbish; and that the fire, which occasioned the loss afterwards, arose in the fallen materials. There was evidence also, as it was admitted, tending to support the petition.

' The court instructed the jury that, if the building was destroyed by fire as alleged in the petition, the plaintiffs were «entitled to recover; and refused to instruct for the defendant, that if the house fell down before the fire, and the fall of the house caused the fire, or the fire was caused by the house falling upon matches or other combustibles, they should find for the defendant.

An instruction was given for the defendant to the effect that,, if the house fell before the fire, the defendant was only liable for the damages actually occasioned by the fire, and not for that occasioned by the fall. On the facts supposed, we are clearly of the opinion that the defendant’s instruction ought to have been given. The subject insured had ceased to be such, and became a mere congeries of materials before the fire occurred, and by reason of a cause not insured against in the policy. The maxim “ causa próxima non remota spectatur” has not application to such a case. If the fire had been the immediate cause of the destruction and the loss, then the remote causes of the fire might have been immaterial. The cause of the loss of the subject insured was not the fire, but the fall. That a fire sprang up afterwards in the rubbish, and destroyed the fallen materials, was wholly another matter. The materials were not insured. The building insured no longer existed as such, and it ceased to exist by reason of a peril not insured against.

The fire must be the efficient cause, and the loss the direct effect of the fire. (1 Phil. Ins. 625.)

The instruction which was given for the defendant proceeded upon an erroneous view of the defendant’s liability, and might as well have been refused with the rest.

Judgment reversed,and cause remanded.

The other judges concur.